Lawyers and Geography

“Ignorance of the geography is no excuse, Counselor.”

Here’s the thesis of this article: There are geographic resources out there. Attorneys, you don’t have to make up geographic stuff and then turn your ignorance of geography into a regulation no one can really interpret or follow.

One of my favorite blatant lies emanating from the legal world is, “[i]gnorance of the law is no excuse.” The problem with it is that we live in a land where there are more laws than people. I’d bet my house that there is no single person alive today who knows every law on the books in the United States. We are all ignorant of the law, and to quote Black Jeopardy, “[t]hat’s how they get you.“

Conversely, it appears we have a trend where some Missouri attorneys are either helping to draft geographically ignorant regulations or appear to be defending regulations that are ignorant of geography. But there is hope! I’ll talk about places you can go for help at the end of this post.

But first, as an example of the problem at hand, I’ll use what is turning out to be a regulatory morass in Cooper County, Missouri. The county’s health board issued CAFO regulations that are confusing and lack the necessary geographic or geospatial references to help regulated entities comply. The result is a bunch of baffled agricultural producers and other landowners who can’t possibly follow the law—not to mention a waste of taxpayer money in both crafting the ill-defined regulations and defending them in court (most likely unsuccessfully).

The First Set of Proposed CAFO Regulations: At Least They Were Intelligible

In 2018, Cooper County’s health board proposed regulations that would limit the location of CAFOs and a variety of activities associated with them.

If you’d like, you can read here the 2018 proposed Cooper County, Missouri, CAFO regulations:

The 2018 regulations essentially entailed locating habitable structures and drawing different distance buffers around them. A snippet of a map (Figure 1) is offered as an example. Geographers, cartographers, and GIS people (almost but not quite three names for the same profession) know how to make buffers. Buffers are easy to make and can help someone understand the geography described by a regulation so that they can comply with a law’s requirements.

Figure 1. A CAFO boundary map snippet.

Bad Geography Goes To Court

Flash forward to 2019, where the Cooper County health board discarded the distance method in their updated regulations and went instead for mystery geography.

Read the 2019 adopted Cooper County, Missouri, CAFO regulations by clicking these links:

Here is a recent (and I think well-crafted) article from the Columbia Daily Tribune: “Judge Halts Enforcement of Cooper County CAFO Rules,” by Brendan Crowley, GateHouse Missouri, posted August 27, 2019, at 5:22 p.m. The article describes how the board went about regulating CAFOs.

Do You Even Soil Survey, Bro?

The board banned building a manure storage lagoon in soil with “severe” potential to swell when wet, or on karst rock formations, characterized by sinkholes and springs. It also bans landowners from spreading manure from a CAFO on a karst formation.

So, instead of distance buffers, they went with soil types and karst formations. Solid move, right? I mean, there is some serious science behind soil classifications. However, I’m not sure it was a solid move because I spent the better part of an afternoon trying to locate the word “severe” in the relevant U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS) soil surveys. I poured over the Cooper County soil survey’s section that addresses shrink-swell characteristics. I couldn’t find it. See if you can:

Swelling & Shrinking & Poop

While I couldn’t locate the word “severe” in conjunction with shrink-swell potential, I did locate the words “moderate” and “high” where the soil survey addressed shrink and swell potential. But where’s the science? Shrink and swell are listed in the section of the soil survey that addresses buildings. I’m no soil scientist, but I think the authors are stating that you don’t want to build a structure over those soils because you run the risk of structural damage over time.

But the CAFO regs are ostensibly all about poop control, and coincidentally, the soil survey addresses poop storage suitability. Yes, the soil survey lists and even maps the soils in Cooper County that are suitable for wastewater lagoons (Figure 2). And nowhere does the soil survey conflate a soil’s shrink and swell potential with its suitability for a wastewater lagoon—you know, the thing you need to keep the poop out of the drinking water that is flowing through your vast underground karst formations, which don’t appear on any map or in any document referenced in your regulations.

Figure 2. A snippet of the NRCS soil survey, showing how the document lists the soils suitable for wastewater lagoons.

Karst topography. It’s whatever you need it to be, man.

Then the Cooper County health board listed karst topography as an area over which one should never place a CAFO. Because science.

The board doesn’t define karst formations, [plaintiff’s attorney Brent] Haden said in response, and the regulations don’t include a map showing where such areas are located. Instead, the board defers to the Missouri Geological Survey’s maps of karst formations, which Haden said the survey wasn’t able to show him.

Here is a link to the referenced “map of karst formations” (also shown in Figure 3). Or is it? Go look for yourself. See if you can find the word “karst,” or any synonyms or phrases like “spongy leaky rock that nurtures our precious drinking water.”

Figure 3. A screenshot of a supposed “map of karst formations” that the Cooper County health board said it “deferred to” when issuing its 2019 CAFO regulations.

[Chris Pieper, representing the health board,] cited a geologic map of Missouri, which details different bedrock geology around the state, but doesn’t show karst formations. The plaintiffs only argued that they want to apply manure from a CAFO on their land, Pieper said. The regulation would only apply to them if they wanted to spread on a karst formation, and none of them said they did, he said.

The crazy thing is that there is a set of geospatial data, originating from the Missouri Geological Survey, hosted by the Missouri Spatial Data Information Service (MSDIS), that maps some aspects of karst topography. That data would have been handy to review before spending a bunch of taxpayer money defending a vaguely written law that will inevitably be struck down in court. It has already been placed under a temporary restraining order.

Here’s the Takeaway

It’s all fun and games until it goes all void for vagueness. If you are out there writing and defending regulations, of any kind, that deal with geography, please get help. There are numerous people, institutions, and digital resources that can help you craft a regulation that is understandable and defensible in a court of law. (Read on.)

A Rich Lode of Geospatial Data Awaits

The state of Missouri, as well as many of its subunits of government, go to great effort and expense to provide us, the tax-paying citizens of Missouri, with an abundance of geographic resources, services, experts, and portals. First and foremost among them is the MSDIS. Just check out the organization’s value statement in their website’s masthead (Figure 4): Committed to the wise sharing & use of digital spatial information and tabular data sets.

Figure 4. The masthead from MSDIS’s website.

MSDIS is the little geographic data warehouse engine that could. Woefully underfunded and underappreciated, and possibly entirely unknown by 99% of Missourians, MSDIS just keeps serving Missouri as our central repository of geospatial data. Most of the geospatial data reflect the physical, administrative, and other features that are constantly being mapped by numerous department of state and local government.

MSDIS is our state’s digital atlas. Some assembly required.

MSDIS: One of the Numerous Resources Available to Geographically Challenged Attorneys

Not only is MSDID a treasure, but it is also staffed by the very friendly and super helpful Mr. Tom Vought.** If you have a question about where to find geographic information about the state, contact him:

I Can’t Curse Your Geoignorance and Still Be Unwilling to Help You, So . . .

I’ll talk to anyone*** for free about geography and point them toward the resources that might help them better understand a situation. And I have a vast network of geospatial friends across the state and nation if I don’t know the answer. We all want to see you get the geography right, so let us help.

A Long Disclaimer

When Cooper County began this process, I worked for Brent Haden, the attorney mentioned in the Columbia Daily Tribune story above. Brent also filed the suit seeking to enjoin the Cooper County regulations. I’ve worked on several cases with Brent in the past, and we have a few others ongoing.

My role in the typical case is to investigate the geography of a situation, work with other professionals like surveyors and engineers, produce maps, possibly write a report that will be disclosed to the opposing parties, and then provide expert witness services in court, if necessary. Basically, I’m a geography detective.

Clinging to Objectivity

I do not work for Brent or my other clients as an advocate or an activist. I work for my clients mostly as a cartographer who has a depth of legal knowledge focused on geography. I look stuff up, interpret my findings, and display them in the way that best illustrates the objective truth of the matter. My role is always to make maps that help my clients show the truth of the situation.

This Isn’t My First CAFO Rodeo

In 2018, I made Brent a series of maps that reflected the geographic scope of the various buffers described in Cooper County’s 2018 regulations. Recently, I examined the shift the Cooper County health board made to using soils and karst topography as the basis to regulate CAFOs.

Detachment

In all my maps and work, I use the best available geospatial data and techniques, and I always strive to do so objectively. It helps because I really don’t care what my maps show, and my attorney client’s don’t expect me to get emotionally involved in their cases.

“. . . the tradition discourages attachments to any particular ideas of enlightenment as well as to pointless philosophical or metaphysical speculation.”

In fact, my nonattachment to the outcome of a case is stated in my contract. I’m not mapping to push a set of political values. Well, if you consider old-fashioned ideas like complete government transparency and truthiness a political agenda, then you caught me.

Can You Be Geographically Woke?

So, in a world where your value as a human being is often measured by how much you care about all the right issues, I really don’t care about my client’s issues. I care about the quality, accuracy, and applicability of the work I produce. I’m satisfied if it is the truth.

Stay in Your Lane

That is one of the things I enjoy about my working relationship with clients like Brent. While an attorney’s role is to offer their client’s zealous advocacy for the client’s legal position, Brent and other good attorneys understand that the cartographic materials I produce have to be objective and the most reasonable interpretation of the real-world situation.

* I am not a fan of the Devil’s lettuce. But to each his own.

** Tom Vought is a good guy with an important job, and he is entirely blameless for anything I have posted here.

*** Obviously, I cannot talk to people taking an adverse position to that of one of my active clients. That is what you’d call an obvious conflict of interest.

Link of the Week

The third edition of How to Lie with Maps, by Mark Monmonier, is available on Amazon.

ISBN-10: 022643592X & ISBN-13: 978-0226435923

“An instant classic when first published in 1991, How to Lie with Maps revealed how the choices mapmakers make—consciously or unconsciously—mean that every map inevitably presents only one of many possible stories about the places it depicts. The principles Mark Monmonier outlined back then remain true today, despite significant technological changes in the making and use of maps. The introduction and spread of digital maps and mapping software, however, have added new wrinkles to the ever-evolving landscape of modern mapmaking.

​Fully updated for the digital age, this new edition of How to Lie with Maps examines the myriad ways that technology offers new opportunities for cartographic mischief, deception, and propaganda.

I shouldn’t have to say this, BUT the author wrote this book, and I offer it here as a cautionary tale for cartographers of integrity as well as those who consume our products. By illustrating how maps have been used to deceive and manipulate situations, Mr. Monmonier gives us a set of tools we can use to evaluate the maps that we produce as cartographers and consult as citizens.

About the Author

You can view Chris Dunn’s third person singular CV here. Basically, he’s a geographer with a law degree, a bar card, and a kick-ass GIS workstation. Email me at Chris.Dunn@GeoVelo.com